[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 354 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 354

To improve patient access to health care services and provide improved 
  medical care by reducing the excessive burden the liability system 
               places on the health care delivery system.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 10, 2005

  Mr. Ensign (for himself, Mr. Gregg, Mr. Thomas, Mr. Inhofe, and Mr. 
 Kyl) introduced the following bill; which was read twice and referred 
       to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To improve patient access to health care services and provide improved 
  medical care by reducing the excessive burden the liability system 
               places on the health care delivery system.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Help Efficient, Accessible, Low-
Cost, Timely Healthcare Act of 2005'' or the ``HEALTH Act of 2005''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--
            (1) Effect on health care access and costs.--Congress finds 
        that our current civil justice system is adversely affecting 
        patient access to health care services, better patient care, 
        and cost-efficient health care, in that the health care 
        liability system is a costly and ineffective mechanism for 
        resolving claims of health care liability and compensating 
        injured patients, and is a deterrent to the sharing of 
        information among health care professionals which impedes 
        efforts to improve patient safety and quality of care.
            (2) Effect on interstate commerce.--Congress finds that the 
        health care and insurance industries are industries affecting 
        interstate commerce and the health care liability litigation 
        systems existing throughout the United States are activities 
        that affect interstate commerce by contributing to the high 
        costs of health care and premiums for health care liability 
        insurance purchased by health care system providers.
            (3) Effect on federal spending.--Congress finds that the 
        health care liability litigation systems existing throughout 
        the United States have a significant effect on the amount, 
        distribution, and use of Federal funds because of--
                    (A) the large number of individuals who receive 
                health care benefits under programs operated or 
                financed by the Federal Government;
                    (B) the large number of individuals who benefit 
                because of the exclusion from Federal taxes of the 
                amounts spent to provide them with health insurance 
                benefits; and
                    (C) the large number of health care providers who 
                provide items or services for which the Federal 
                Government makes payments.
    (b) Purpose.--It is the purpose of this Act to implement 
reasonable, comprehensive, and effective health care liability reforms 
designed to--
            (1) improve the availability of health care services in 
        cases in which health care liability actions have been shown to 
        be a factor in the decreased availability of services;
            (2) reduce the incidence of ``defensive medicine'' and 
        lower the cost of health care liability insurance, all of which 
        contribute to the escalation of health care costs;
            (3) ensure that persons with meritorious health care injury 
        claims receive fair and adequate compensation, including 
        reasonable noneconomic damages;
            (4) improve the fairness and cost-effectiveness of our 
        current health care liability system to resolve disputes over, 
        and provide compensation for, health care liability by reducing 
        uncertainty in the amount of compensation provided to injured 
        individuals; and
            (5) provide an increased sharing of information in the 
        health care system which will reduce unintended injury and 
        improve patient care.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Alternative dispute resolution system; adr.--The term 
        ``alternative dispute resolution system'' or ``ADR'' means a 
        system that provides for the resolution of health care lawsuits 
        in a manner other than through a civil action brought in a 
        State or Federal court.
            (2) Claimant.--The term ``claimant'' means any person who 
        brings a health care lawsuit, including a person who asserts or 
        claims a right to legal or equitable contribution, indemnity or 
        subrogation, arising out of a health care liability claim or 
        action, and any person on whose behalf such a claim is asserted 
        or such an action is brought, whether deceased, incompetent, or 
        a minor.
            (3) Collateral source benefits.--The term ``collateral 
        source benefits'' means any amount paid or reasonably likely to 
        be paid in the future to or on behalf of the claimant, or any 
        service, product or other benefit provided or reasonably likely 
        to be provided in the future to or on behalf of the claimant, 
        as a result of the injury or wrongful death, pursuant to--
                    (A) any State or Federal health, sickness, income-
                disability, accident, or workers' compensation law;
                    (B) any health, sickness, income-disability, or 
                accident insurance that provides health benefits or 
                income-disability coverage;
                    (C) any contract or agreement of any group, 
                organization, partnership, or corporation to provide, 
                pay for, or reimburse the cost of medical, hospital, 
                dental, or income disability benefits; and
                    (D) any other publicly or privately funded program.
            (4) Compensatory damages.--The term ``compensatory 
        damages'' means objectively verifiable monetary losses incurred 
        as a result of the provision of, use of, or payment for (or 
        failure to provide, use, or pay for) health care services or 
        medical products, such as past and future medical expenses, 
        loss of past and future earnings, cost of obtaining domestic 
        services, loss of employment, and loss of business or 
        employment opportunities, damages for physical and emotional 
        pain, suffering, inconvenience, physical impairment, mental 
        anguish, disfigurement, loss of enjoyment of life, loss of 
        society and companionship, loss of consortium (other than loss 
        of domestic service), hedonic damages, injury to reputation, 
        and all other nonpecuniary losses of any kind or nature. Such 
        term includes economic damages and noneconomic damages, as such 
        terms are defined in this section.
            (5) Contingent fee.--The term ``contingent fee'' includes 
        all compensation to any person or persons which is payable only 
        if a recovery is effected on behalf of one or more claimants.
            (6) Economic damages.--The term ``economic damages'' means 
        objectively verifiable monetary losses incurred as a result of 
        the provision of, use of, or payment for (or failure to 
        provide, use, or pay for) health care services or medical 
        products, such as past and future medical expenses, loss of 
        past and future earnings, cost of obtaining domestic services, 
        loss of employment, and loss of business or employment 
        opportunities.
            (7) HEALTH care lawsuit.--The term ``health care lawsuit'' 
        means any health care liability claim concerning the provision 
        of health care goods or services affecting interstate commerce, 
        or any health care liability action concerning the provision of 
        (or the failure to provide) health care goods or services 
        affecting interstate commerce, brought in a State or Federal 
        court or pursuant to an alternative dispute resolution system, 
        against a health care provider, a health care organization, or 
        the manufacturer, distributor, supplier, marketer, promoter, or 
        seller of a medical product, regardless of the theory of 
        liability on which the claim is based, or the number of 
        claimants, plaintiffs, defendants, or other parties, or the 
        number of claims or causes of action, in which the claimant 
        alleges a health care liability claim.
            (8) HEALTH care liability action.--The term ``health care 
        liability action'' means a civil action brought in a State or 
        Federal Court or pursuant to an alternative dispute resolution 
        system, against a health care provider, a health care 
        organization, or the manufacturer, distributor, supplier, 
        marketer, promoter, or seller of a medical product, regardless 
        of the theory of liability on which the claim is based, or the 
        number of plaintiffs, defendants, or other parties, or the 
        number of causes of action, in which the claimant alleges a 
        health care liability claim.
            (9) HEALTH care liability claim.--The term ``health care 
        liability claim'' means a demand by any person, whether or not 
        pursuant to ADR, against a health care provider, health care 
        organization, or the manufacturer, distributor, supplier, 
        marketer, promoter, or seller of a medical product, including 
        third-party claims, cross-claims, counter-claims, or 
        contribution claims, which are based upon the provision of, use 
        of, or payment for (or the failure to provide, use, or pay for) 
        health care services or medical products, regardless of the 
        theory of liability on which the claim is based, or the number 
        of plaintiffs, defendants, or other parties, or the number of 
        causes of action.
            (10) HEALTH care organization.--The term ``health care 
        organization'' means any person or entity which is obligated to 
        provide or pay for health benefits under any health plan, 
        including any person or entity acting under a contract or 
        arrangement with a health care organization to provide or 
        administer any health benefit.
            (11) HEALTH care provider.--The term ``health care 
        provider'' means any person or entity required by State or 
        Federal laws or regulations to be licensed, registered, or 
        certified to provide health care services, and being either so 
        licensed, registered, or certified, or exempted from such 
        requirement by other statute or regulation.
            (12) HEALTH care goods or services.--The term ``health care 
        goods or services'' means any goods or services provided by a 
        health care organization, provider, or by any individual 
        working under the supervision of a health care provider, that 
        relates to the diagnosis, prevention, care, or treatment of any 
        human disease or impairment, or the assessment of the health of 
        human beings.
            (13) Malicious intent to injure.--The term ``malicious 
        intent to injure'' means intentionally causing or attempting to 
        cause physical injury other than providing health care goods or 
        services.
            (14) Medical product.--The term ``medical product'' means a 
        drug or device intended for humans. The terms ``drug'' and 
        ``device'' have the meanings given such terms in sections 
        201(g)(1) and 201(h) of the Federal Food, Drug and Cosmetic Act 
        (21 U.S.C. 321), respectively, including any component or raw 
        material used therein, but excluding health care services.
            (15) Noneconomic damages.--The term ``noneconomic damages'' 
        means damages for physical and emotional pain, suffering, 
        inconvenience, physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium (other than loss of domestic 
        service), hedonic damages, injury to reputation, and all other 
        nonpecuniary losses of any kind or nature.
            (16) Punitive damages.--The term ``punitive damages'' means 
        damages awarded, for the purpose of punishment or deterrence, 
        and not solely for compensatory purposes, against a health care 
        provider, health care organization, or a manufacturer, 
        distributor, or supplier of a medical product. Punitive damages 
        are neither economic nor noneconomic damages.
            (17) Recovery.--The term ``recovery'' means the net sum 
        recovered after deducting any disbursements or costs incurred 
        in connection with prosecution or settlement of the claim, 
        including all costs paid or advanced by any person. Costs of 
        health care incurred by the plaintiff and the attorneys' office 
        overhead costs or charges for legal services are not deductible 
        disbursements or costs for such purpose.
            (18) State.--The term ``State'' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, the Virgin Islands, Guam, American Samoa, the Northern 
        Mariana Islands, the Trust Territory of the Pacific Islands, 
        and any other territory or possession of the United States, or 
        any political subdivision thereof.

SEC. 4. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

    (a) In General.--Except as otherwise provided for in this section, 
the time for the commencement of a health care lawsuit shall be 3 years 
after the date of manifestation of injury or 1 year after the claimant 
discovers, or through the use of reasonable diligence should have 
discovered, the injury, whichever occurs first.
    (b) General Exception.--The time for the commencement of a health 
care lawsuit shall not exceed 3 years after the date of manifestation 
of injury unless the tolling of time was delayed as a result of--
            (1) fraud;
            (2) intentional concealment; or
            (3) the presence of a foreign body, which has no 
        therapeutic or diagnostic purpose or effect, in the person of 
        the injured person.
    (c) Minors.--An action by a minor shall be commenced within 3 years 
from the date of the alleged manifestation of injury except that if 
such minor is under the full age of 6 years, such action shall be 
commenced within 3 years of the manifestation of injury, or prior to 
the eighth birthday of the minor, whichever provides a longer period. 
Such time limitation shall be tolled for minors for any period during 
which a parent or guardian and a health care provider or health care 
organization have committed fraud or collusion in the failure to bring 
an action on behalf of the injured minor.

SEC. 5. COMPENSATING PATIENT INJURY.

    (a) Unlimited Amount of Damages for Actual Economic Losses in 
HEALTH Care Lawsuits.--In any health care lawsuit, nothing in this Act 
shall limit the recovery by a claimant of the full amount of the 
available economic damages, notwithstanding the limitation contained in 
subsection (b).
    (b) Additional Noneconomic Damages.--In any health care lawsuit, 
the amount of noneconomic damages recovered, if otherwise available 
under applicable Federal or State law, may be as much as $250,000, 
regardless of the number of parties against whom the action is brought 
or the number of separate claims or actions brought with respect to the 
same occurrence.
    (c) No Discount of Award for Noneconomic Damages.--In any health 
care lawsuit--
            (1) an award for future noneconomic damages shall not be 
        discounted to present value;
            (2) the jury shall not be informed about the maximum award 
        for noneconomic damages under subsection (b);
            (3) an award for noneconomic damages in excess of $250,000 
        shall be reduced either before the entry of judgment, or by 
        amendment of the judgment after entry of judgment, and such 
        reduction shall be made before accounting for any other 
        reduction in damages required by law; and
            (4) if separate awards are rendered for past and future 
        noneconomic damages and the combined awards exceed $250,000, 
        the future noneconomic damages shall be reduced first.
    (d) Fair Share Rule.--In any health care lawsuit, each party shall 
be liable for that party's several share of any damages only and not 
for the share of any other person. Each party shall be liable only for 
the amount of damages allocated to such party in direct proportion to 
such party's percentage of responsibility. A separate judgment shall be 
rendered against each such party for the amount allocated to such 
party. For purposes of this section, the trier of fact shall determine 
the proportion of responsibility of each party for the claimant's harm.

SEC. 6. MAXIMIZING PATIENT RECOVERY.

    (a) Court Supervision of Share of Damages Actually Paid to 
Claimants.--
            (1) In general.--In any health care lawsuit, the court 
        shall supervise the arrangements for payment of damages to 
        protect against conflicts of interest that may have the effect 
        of reducing the amount of damages awarded that are actually 
        paid to claimants.
            (2) Contingency fees.--
                    (A) In general.--In any health care lawsuit in 
                which the attorney for a party claims a financial stake 
                in the outcome by virtue of a contingent fee, the court 
                shall have the power to restrict the payment of a 
                claimant's damage recovery to such attorney, and to 
                redirect such damages to the claimant based upon the 
                interests of justice and principles of equity.
                    (B) Limitation.--The total of all contingent fees 
                for representing all claimants in a health care lawsuit 
                shall not exceed the following limits:
                            (i) 40 percent of the first $50,000 
                        recovered by the claimant(s).
                            (ii) 33\1/3\ percent of the next $50,000 
                        recovered by the claimant(s).
                            (iii) 25 percent of the next $500,000 
                        recovered by the claimant(s).
                            (iv) 15 percent of any amount by which the 
                        recovery by the claimant(s) is in excess of 
                        $600,000.
    (b) Applicability.--
            (1) In general.--The limitations in subsection (a) shall 
        apply whether the recovery is by judgment, settlement, 
        mediation, arbitration, or any other form of alternative 
        dispute resolution.
            (2) Minors.--In a health care lawsuit involving a minor or 
        incompetent person, a court retains the authority to authorize 
        or approve a fee that is less than the maximum permitted under 
        this section.
    (c) Expert Witnesses.--
            (1) Requirement.--No individual shall be qualified to 
        testify as an expert witness concerning issues of negligence in 
        any health care lawsuit against a defendant unless such 
        individual--
                    (A) except as required under paragraph (2), is a 
                health care professional who--
                            (i) is appropriately credentialed or 
                        licensed in 1 or more States to deliver health 
                        care services; and
                            (ii) typically treats the diagnosis or 
                        condition or provides the type of treatment 
                        under review; and
                    (B) can demonstrate by competent evidence that, as 
                a result of training, education, knowledge, and 
                experience in the evaluation, diagnosis, and treatment 
                of the disease or injury which is the subject matter of 
                the lawsuit against the defendant, the individual was 
                substantially familiar with applicable standards of 
                care and practice as they relate to the act or omission 
                which is the subject of the lawsuit on the date of the 
                incident.
            (2) Physician review.--In a health care lawsuit, if the 
        claim of the plaintiff involved treatment that is recommended 
        or provided by a physician (allopathic or osteopathic), an 
        individual shall not be qualified to be an expert witness under 
        this subsection with respect to issues of negligence concerning 
        such treatment unless such individual is a physician.
            (3) Specialties and subspecialties.--With respect to a 
        lawsuit described in paragraph (1), a court shall not permit an 
        expert in one medical specialty or subspecialty to testify 
        against a defendant in another medical specialty or 
        subspecialty unless, in addition to a showing of substantial 
        familiarity in accordance with paragraph (1)(B), there is a 
        showing that the standards of care and practice in the two 
        specialty or subspecialty fields are similar.
            (4) Limitation.--The limitations in this subsection shall 
        not apply to expert witnesses testifying as to the degree or 
        permanency of medical or physical impairment.

SEC. 7. ADDITIONAL HEALTH BENEFITS.

    (a) In General.--The amount of any damages received by a claimant 
in any health care lawsuit shall be reduced by the court by the amount 
of any collateral source benefits to which the claimant is entitled, 
less any insurance premiums or other payments made by the claimant (or 
by the spouse, parent, child, or legal guardian of the claimant) to 
obtain or secure such benefits.
    (b) Preservation of Current Law.--Where a payor of collateral 
source benefits has a right of recovery by reimbursement or subrogation 
and such right is permitted under Federal or State law, subsection (a) 
shall not apply.
    (c) Application of Provision.--This section shall apply to any 
health care lawsuit that is settled or resolved by a fact finder.

SEC. 8. PUNITIVE DAMAGES.

    (a) Punitive Damages Permitted.--
            (1) In general.--Punitive damages may, if otherwise 
        available under applicable State or Federal law, be awarded 
        against any person in a health care lawsuit only if it is 
        proven by clear and convincing evidence that such person acted 
        with malicious intent to injure the claimant, or that such 
        person deliberately failed to avoid unnecessary injury that 
        such person knew the claimant was substantially certain to 
        suffer.
            (2) Filing of lawsuit.--No demand for punitive damages 
        shall be included in a health care lawsuit as initially filed. 
        A court may allow a claimant to file an amended pleading for 
        punitive damages only upon a motion by the claimant and after a 
        finding by the court, upon review of supporting and opposing 
        affidavits or after a hearing, after weighing the evidence, 
        that the claimant has established by a substantial probability 
        that the claimant will prevail on the claim for punitive 
        damages.
            (3) Separate proceeding.--At the request of any party in a 
        health care lawsuit, the trier of fact shall consider in a 
        separate proceeding--
                    (A) whether punitive damages are to be awarded and 
                the amount of such award; and
                    (B) the amount of punitive damages following a 
                determination of punitive liability.
        If a separate proceeding is requested, evidence relevant only 
        to the claim for punitive damages, as determined by applicable 
        State law, shall be inadmissible in any proceeding to determine 
        whether compensatory damages are to be awarded.
            (4) Limitation where no compensatory damages are awarded.--
        In any health care lawsuit where no judgment for compensatory 
        damages is rendered against a person, no punitive damages may 
        be awarded with respect to the claim in such lawsuit against 
        such person.
    (b) Determining Amount of Punitive Damages.--
            (1) Factors considered.--In determining the amount of 
        punitive damages under this section, the trier of fact shall 
        consider only the following:
                    (A) the severity of the harm caused by the conduct 
                of such party;
                    (B) the duration of the conduct or any concealment 
                of it by such party;
                    (C) the profitability of the conduct to such party;
                    (D) the number of products sold or medical 
                procedures rendered for compensation, as the case may 
                be, by such party, of the kind causing the harm 
                complained of by the claimant;
                    (E) any criminal penalties imposed on such party, 
                as a result of the conduct complained of by the 
                claimant; and
                    (F) the amount of any civil fines assessed against 
                such party as a result of the conduct complained of by 
                the claimant.
            (2) Maximum award.--The amount of punitive damages awarded 
        in a health care lawsuit may not exceed an amount equal to two 
        times the amount of economic damages awarded in the lawsuit or 
        $250,000, whichever is greater. The jury shall not be informed 
        of the limitation under the preceding sentence.
    (c) Liability of Health Care Providers.--A health care provider who 
prescribes, or who dispenses pursuant to a prescription, a drug or 
device (including blood products) approved by the Food and Drug 
Administration shall not be named as a party to a product liability 
lawsuit invoking such drug or device and shall not be liable to a 
claimant in a class action lawsuit against the manufacturer, 
distributor, or product seller of such drug or device.

SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN 
              HEALTH CARE LAWSUITS.

    (a) In General.--In any health care lawsuit, if an award of future 
damages, without reduction to present value, equaling or exceeding 
$50,000 is made against a party with sufficient insurance or other 
assets to fund a periodic payment of such a judgment, the court shall, 
at the request of any party, enter a judgment ordering that the future 
damages be paid by periodic payments in accordance with the Uniform 
Periodic Payment of Judgments Act promulgated by the National 
Conference of Commissioners on Uniform State Laws.
    (b) Applicability.--This section applies to all actions which have 
not been first set for trial or retrial before the effective date of 
this Act.

SEC. 10. EFFECT ON OTHER LAWS.

    (a) Vaccine Injury.--
            (1) In general.--To the extent that title XXI of the Public 
        Health Service Act establishes a Federal rule of law applicable 
        to a civil action brought for a vaccine-related injury or 
        death--
                    (A) this Act shall not affect the application of 
                the rule of law to such an action; and
                    (B) any rule of law prescribed by this Act in 
                conflict with a rule of law of such title XXI shall not 
                apply to such action.
            (2) Exception.--If there is an aspect of a civil action 
        brought for a vaccine-related injury or death to which a 
        Federal rule of law under title XXI of the Public Health 
        Service Act does not apply, then this Act or otherwise 
        applicable law (as determined under this Act) will apply to 
        such aspect of such action.
    (b) Other Federal Law.--Except as provided in this section, nothing 
in this Act shall be deemed to affect any defense available to a 
defendant in a health care lawsuit or action under any other provision 
of Federal law.

SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

    (a) HEALTH Care Lawsuits.--The provisions governing health care 
lawsuits set forth in this Act shall preempt, subject to subsections 
(b) and (c), State law to the extent that State law prevents the 
application of any provisions of law established by or under this Act. 
The provisions governing health care lawsuits set forth in this Act 
supersede chapter 171 of title 28, United States Code, to the extent 
that such chapter--
            (1) provides for a greater amount of damages or contingent 
        fees, a longer period in which a health care lawsuit may be 
        commenced, or a reduced applicability or scope of periodic 
        payment of future damages, than provided in this Act; or
            (2) prohibits the introduction of evidence regarding 
        collateral source benefits.
    (b) Preemption of Certain State Laws.--The provisions of this Act 
shall preempt any constitutional provision, statute, or rule of State 
law, whether enacted prior to, on, or after the date of enactment of 
this Act, that--
            (1) prohibits the application of any limitation on the 
        amount of compensatory, punitive, or total damages in a health 
        care lawsuit; or
            (2) provides for a greater amount of compensatory, 
        punitive, or total damages in a health care lawsuit than those 
        provided for under this Act.
    (c) Protection of State's Rights and Other Laws.--
            (1) In general.--Any issue that is not governed by a 
        provision of law established by or under this Act (including 
        the State standards of negligence) shall be governed by 
        otherwise applicable Federal or State law.
            (2) Rule of construction.--Nothing in this Act shall be 
        construed to--
                    (A) preempt or supersede any Federal or State law 
                that imposes greater procedural or substantive 
                protections (such as a shorter statute of limitations) 
                for a health care provider, health care organization, 
                or the manufacturer, distributor, supplier, marketer, 
                promoter, or seller of a medical product from 
                liability, loss, or damages than those provided by this 
                Act;
                    (B) create a cause of action that is not otherwise 
                available under Federal or State law; or
                    (C) affect the scope of preemption of any other 
                Federal law.

SEC. 12. APPLICABILITY; EFFECTIVE DATE.

    This Act shall apply to any health care lawsuit brought in a 
Federal or State court, or subject to an alternative dispute resolution 
system, that is initiated on or after the date of the enactment of this 
Act, except that any health care lawsuit arising from an injury 
occurring prior to the date of enactment of this Act shall be governed 
by the applicable statute of limitations provisions in effect at the 
time the injury occurred.
                                 <all>